MASTER 
NEGA  TIVE 
NO.  91-80416 


MICROFILMED  1992 
COLUMBIA  UNIVERSITY  LIBRARIES/NEW  YORK 


as  part  of  the 
"Foundations  of  Western  Civilization  Preservation  Project" 


Funded  by  the 
WMENT  FOR  THE 


Reproductions  may  not  be  made  without  permission  from 

Columbia  University  Library 


COPYRIGHT  STATEMENT 

The  copyright  law  of  the  United  States  -  Title  17,  United 
States  Code  ~  concerns  the  making  of  photocopies  or  other 
reproductions  of  copyrighted  material... 

Columbia  University  Library  reserves  the  right  to  refuse  to 
accept  a  copy  order  if,  in  its  judgement,  fulfillment  of  the  order 
would  involve  violation  of  the  copyright  law. 


AUTHOR: 


SCHROEDER, 

THEODORE  ALBERT 


TITLE: 


UNCONSTITUTIONAL! 
TY  OF  ALL  LAWS.... 


PLACE: 


NEW  YORK 


DA  TE : 


[1 908?] 


COLUMBIA  UNIVERSITY  LIBRARIES 
PRESERVATION  DEPARTMENT 

BIBLIOGRAPHIC  MICROFORM  TARGET 


Master  Negative  # 


Original  Material  as  Filmed  -  Existing  Bibliographic  Record 


176.8 


v.l 


Albert, 
Schroeder,  Theodore, a  18^4- 19b3« 

Unconstitutionality  of  all  laws  against  "ob- 
scene" literature,  asserted  in  a  brief  by  Theo- 
dore Schrooder...  Hew  York,  Free  speech  league 
1910? 3 

15  p«      24  on* 

Volune  of  pamphlets 


I 

U 


Restrictions  on  Use: 


FILM     SIZE:     "^S^V^ 


TECHNICAL  MICROFORM  DATA 


REDUCTION     RATIO:__\V_]< 

DATE     FILMED: illlL^Jz^ INITIALS__-__!^_^Sj 

FILMED  BY:    RESEARCH  PUBLICATIONS.  INC  WOODBRIDGE.  CT 


IMAGE  PLACEMENT:    lA  OiS)    IB     IIB 


Association  for  Information  and  Imago  Managemont 


1100  Wayne  Avenue.  Suite  1100 
Silver  Spring,  Maryland  20910 

301/587-8202 


Centimeter 

1         2        3 


iiMiMiiiiiiiiiiiiiiMiiiiMliinhmln 


I  I  T 


Inches 


1 


5 

ml 


8 


10       11 


i^ll^^lj^^J^^i^i^J^^h^J^^ 


r^ 


1.0 


I.I 


1.25 


mi 


|50 

¥' 

2.5 

1^ 

2.2 

Itt 

lU 
u 


Uo 


1.4 


2.0 


1.8 


1.6 


12       13       14 

liiiiliiiiliiiiliii 


ill! 


15    mm 


MPNUFRCTURED  TO  OHM  STfiNDPRDS 
BY  APPLIED  IMfiGE,    INC. 


/«^> 


<i> 


A  ^^ 


^ 


'% 


^:z--^ 


Uo  4- 


UNCONSTITUTIONALITY 


OF  ALL  LAWS  AGAINST 


"OBSCENE"  LITERATURE, 


ASSERTED  IN   A  BRIEF 


BY 


"^       THEODORE  SCHROEDER,    A 


63  East  Fifty-ninth  Street, 
New  York  City. 


published  by  the 

FREE    SPEECH    LEAGUE, 

120  Lexington  Avenue, 

New  York  City. 


it 


»*  Indeed,    no    opinion    or   doctrine,    of  whatever 
nature   it  be,  or  whatever  be   its  tendency,  ought 
*'  to    be    suppressed.       For    it    is    either    manifestly 

-  true  or  it  is  manifestly  false,  or  its  truth  or  false- 

-  hood  is  dubious.     Its  tendency  is  manifestly  good, 

-  or  manifestly  bad,  or  it  is  dubious  and  concealed. 
*'  There  are  no  other  assignable  conditions,  no  other 
"  functions  of  the  problem. 

»*  In  the  case  of  its  being  manifestly  true  and  of 
'♦  good  tendency  there  can  be  no  dispute.  Nor  in 
••  the  case  of  its  being  manifestly  otherwise  ;  for  by 
*•  the  terms  it  can  mislead  nobody.  If  its  truth  or 
*  its  tendency  be  dubious,  it  is  clear  that  nothing  can 
♦*  bring  the  good  to  light,  or  expose  the  evil,  but  full 
*'  and  free  disdussion.  Until  this  takes  place,  a  plaus- 
**  ible  fallacy  may  do  harm  ;  but  discussion  is  sure  to 
*'  elicit  the  truth  and  fix  public  opinion  on  a  proper 
"  basis;  and  nothing  else  can  do  it."— Prof.  Thomas 
Cooper. 


•*  It  is  a  truth  that  men  ought  no  longer  to  be  led, 
and  it  would  be  a  joyful  truth,  if  truth  it  were,  that 
they  are  resolved  no  longer  to  be  led  blindfolded  in 
ignorance.  It  is  a  truth  that  the  principle  which 
leads  men  to  judge  and  treat  each  other,  not  ac- 
cording to  the  intrinsic  merit  of  their  action,  but* 
according  to  the  accidental  and  involuntary  coinci- 
dence of  their  opinions,  is  a  vile  principle.  It  is  a 
truth  that  man  should  not  render  account  to  man 
for  his  beliefs,"— even  on  the  subject  of  sex. 


\ 


ALL  LAWS  AGAINST  "OBSCENE"  LITERATURE 
ARE  UNCONSTITUTIONAL. 

Revised  from  TAe  Albany  Law  Journal,  Nov.  1907,  where  all 
decisions  upon  the  subject  are  reviewed. 

I  am  now  making  a  statement  of  the  questions  to  be  discussed 
•n  a  forthcoming  book.     I  will  here  briefly  outline  them  with 
references  to  a  few  preliminary  discussions  in  professional  peri- 
odicals  and   pamphlets.     These   contentions,  when   adequately 
presented.  I  believe  must  result  in  the  judicial  annuUment  of  all 
present  State  and  Federal   laws  against  "obscene"   literature 
n  i^ /{'"">  ^'^^  Journal,  for  November.  1907,  I   reviewed 
all  the  decisions  of  the  Supreme  Court  of  the  United  States  refer- 
ring to  the  constitutionality  of  these  laws,  to  show  that  every 
question  which  I  am  about  to  raise  is  still  an  open  one,  free  even 
from  every  suspicion  that  such  problems  exist.     That  such  laws 
have  been  enforced  vigorously  for  nearly  half  a  century,  without 
having  their  constitutionality  seriously  questioned  is  as  unusual 
as  are  the  factors  to  which  the  Constitution  must  be  applied  in 
order  to  reach  the  result.     Most  of  the  problems  here  involved 
are  difficult  of  solution  to  those  who  are  not  trained  specialists  in 
psychology  and  especially  in  sexual  psychology.     Later  on.  in 
the  completed  argument,  when  we  come  to  study  the  nature  and 
psychology  of  modesty,  we  will  find  the  explanation  of  this  lonir 
acqu^scence  to  be  of  the  very  essence  of  our  emotional  life 
which  coupled  with  the  general  absence  of  psycho-sexual  intelli- 
gence, have  so  befogged  the  critical  capacity  of  the  members  of 
the  profession  as  even  to  preclude  a  search  for  the  discovery  of 
such  questions  as  I  am  about  to  raise.     My  contention  is  that 
the  postal  laws  (and  all  state  laws  as  well)  against  "obscene  and 
indecent     literature  are  unconstitutional  for  each  of  the  foUowine- 
reasons:  * 

1.     Because  not  within  any  expressed  or  implied  power  of 
Congress  to  enact. 

Syllabus  of  the  Argument:  The  power  to  create  a  posUl 
system  implies  the  power  to  pass  all  laws  "necessary  and 
proper     to  the  end  of  executing  the  power  to  establish  post 


offices  and  post  roads,  but  it  does  not  authorize  Congress  under 
the  pretext  of  creating  and  maintaining  post  offices  to  make  the 
postal    system   a   means  to  the  accomplishment   of  ends   no 
entrusted  to  the  care  of  Congress.    The  very  creafon  of  a  posta 
system  necessarily  involves  a  determination  of  the  gross  physical 
characteristics  of  that  which  is  to  be  carried  or  excluded  and 
therefore  implies  the  power  to  determine  such  qualities      A  like 
implication  cannot  be  made  in  favor  of  a  power  to  determine 
what  are  mailable  ideas,  because  a  differential  test  of  mail  mat- 
ter, based  upon  the  opinions  transmitted  through  the  mails,  or 
the  psychlogical  tendencies  of  such  opinions  upon  the  addressee 
of  the  mails,  or  a  differential  test  based  upon  an  idea  which  is 
not  actually  transmitted,  but  is  suggested  by  one  that  is  trans- 
mitted, bears  no  conceivable  relation  to  the  establishment  of 
post  offices  or  post  roads  for  the  transmission  of  physical  matter 

only. 

It  may  be  admitted  that  the  power  granted  implies  the  power 
to  preclude  the  use  of  the  mails  as  an  essential  element  in  the 
commission  of  a  crime  otherwise  commitable,  and  over  which 
Congress  has  jurisdiction  (such  as  a  fraud  and  gambling),  within 
the  geographical  limits  of  its  power.     But  it  is  claimed  that  the 
power  of  Congress  is  limited  to  the  use  of  means  which  are  a 
direct  mode  of  executing  the  power  to  establish  post  offices  and 
post  roads,  or  some  other  power  expressly  granted,  and  it  can- 
not, under  the   pretence   of  regulating   the   mails,  accomplish 
objects  which  the  Constitution  does  not  commit  to  the  care  ol 
Congress.     Such  as  unconstitutional  object  is  the  effort  of  Con- 
gress, under  the  pretext  of  regulating  the  mails,  to  try  to  use 
the  mails  as  a  means  to  control  the  psycho-sexual  condition  of 

postal  patrons.  , 

"On  the  Implied  Power  to  exclude  '  obscene    ideas 
FROM  THE  MAILS."    Central  Law  Journal,  V.  65.  p.  177-   (Sept. 

6,  1907-) 


Neither  can  the  exercise  of  the  present  power  be  justified  as 
an  incident  to  the  power  to  regulate  interstate  commerce  be- 
cause  the  censorship  is  not  limited  thereto.  It  includes  Intra- 
state transmission  as  well  as  that  of  private  letters,  or  gifts  which 


«  ;. 


are  not  at  all  matters  of  commerce  either  Inter-state  or  otherwise, 
and  so  cannot  be  upheld  as  a  regularion  of  Inter-state  commerce. 

Howard  vs.  111.  Cent.  R  R.,  28  Supt  Ct.  Rep.  141. 

For   these    reasons   the   power   exercised    is   not   vested    in 
Congress  at  all. 

2.  The  postal  laws  against  "obscene"  literature  are  void 
under  the  constitutional  prohibition  against  the  abridgement  of 
freedom  of  speech  and  of  the  press.  Likewise  all  similar  State 
legislation  is  void  under  State  Constitutions. 

Syllabus  of  the  argument:  This  constitutional  guarantee  of 
freedom  of  the  press  is  violated  whenever  there  is  an  artificial 
legislative  destruction  or  abridgement  of  the  greatest  liberty 
consistent  with  an  equality  of  liberty,  in  the  use  of  the  printed 
page  as  a  means  of  disseminating  ideas  of  conflicting  tendency. 
The  use  of  printing  is  but  an  extended  form  of  speech.  Free- 
dom of  speech  and  press  is  abridged  whenever  natural  opportu- 
nity is  in  any  respect  denied  or  its  exercise  punished,  or  when 
by  legislative  enactment  there  is  created  an  artificial  inequality 
of  opportunity,  by  a  discrimination  according  to  the  subject 
matter  discussed,  or  a  discrimination  as  between  different  ten- 
dencies in  the  different  treatment  of  the  same  subject  matter,  or 
according  to  differences  of  literary  style  in  expressing  the  same 
thought.  All  this  is  now  accomplished  under  obscenity  laws  as 
at  present  administered,  and  therefore  our  laws  upon  the  subject 
are  unconstitutional. 

This  contention  involves  the  establishment  of  new  definition 
of  "freedom  of  the  press"  based  upon  the  viewpoint  that  the 
framers  of  the  constitution  intended  by  that  clause  to  enlarge  the 
intellectual  liberty  ol  the  citizen  beyond  what  it  had  theretofore 
been  under  the  English  system.  Some  State  courts  have  erro- 
neously assumed  that  the  only  purpose  was  to  exchange  a 
censorship  before  publication  to  criminal  punishment  after  publi- 
cation, without  the  least  enlargement  of  the  right  to  publish 
with  impunity  so  long  as  no  one  is  injured.  The  contention 
will  be  that  the  constitution  changed  liberty  of  the  press  by 
permission,  to  Liberty  as  a  right  because  thus  only  can  all 
citizens  be  protected  in  their  proper  opportunity  to  hear  and 
read  all  that  others  have  to  offer,  and  without  which  freedom 
unrestricted  there  is  no  intellectual  liberty  at  all  as  a  matter 
of  right. 

•THE  JUDICIAL  DESTRUCTION  OF  FREEDOM  OF 
THE  PRESS,"  in  Government,  for  Angr:^)  1908. 


{}  Q/klA^    ^H 


aU-au^  ^ /r^*'--'^^^. 


V 


"THE  SCIENTIFIC  ASPECT  OF  "DUE  PROCESS  OF 
LAW,'  "  in  American  Law  Review,  for  June.  1908. 

-LIBERTY  OF  CONSCIENCE,  SPEECH  AND  PRESS," 
in  The  Liberal  Review,  for  August  and  Sept.,  1906. 

••FREEDOM  OF  THE  PRESS  AND  OBSCENE'  LIT- 
ERATURE," N.  Y.,  1907.  (Published  by  The  Free  Speech 
League,  120  Lexington  Avenne,  New  York.) 

(Also  many  other  articles  now  being  prepared,  and  more  to 
the  point  on  the  precise  question  of  constitutional  law  here  in^ 

3.     The  '  'obscenity' '  laws  violate  the  constitutional  guarantee 
of  "due  process  of  law.*' 

Syllabus  of  the  argument:    The  statute  furnishes  no  sundard 
or  test  by  which  to  differentiate  what  book  is  obscene  from  that 
which  is  not,  because  of  which  fact  the  definition  of  the  cr.me  .s 
uncertain.    Furthermore,  it  is  a  demonstrable  fact  of  science  that 
obscenity  and  indecency  are  not  sense-perce.ved  qualities  o    a 
book,  but  are  solely  and  exclusively  a  condition  or  effect  in  the 
reading  mind.     This  is  evidenced  in  the  result  that  it  has  been 
and  always  will  be  impossible  to  state  a  definition  or  test  of 
obscenity  in  terms  of  the  qualities  of  a  book,  or  such  a  one  that, 
solely  by  applying  the  test  to  any  given  book,  accuracy  and 
uniformity  of  result  must  follow,  no  matter  who  applies  the  test, 
nor  such  that  when  there  is  no  dispute  about  any  physical  fact 
of  present  or  past  existence,  any  man  may  know  in  advance  of  a 
trial   and  a  verdict,  solely  from  reading   the  statute,  what   the 
verdict  must  be  as  to  the  obscenity,  and  consequent  cr.mmality, 
of  every  given  book.     Neither  the  statute,  not  the  judicial  test 
of  obscenity  or  indecency,  furnish  any  certain  advance  informa- 
tion as  to  what  must  be  the  verdict  of  a  jury  upon  the  specula- 
tive problem  of  the  psychological  effect  of  a  given  book  upon  an 
undescribed  hypothetical  reader.      Their  verdict  is,  therefore, 
not  according  to  the  letter  of  any  general  law.  but  according  to 
their  whim,  caprice  and  prejudices,  or  varying  personal  experi- 
ences and  different  degrees  of   sexual   hypersstheticism   and 
varying  kinds  and  quality  of  intelligence  upon  the  subject  of 
sexual  psychology,  or  moral  idiosyncracies.     In  consequence. 


every  such  verdict  is  according  to  a  test  of  obscenity  personal  to 
the  court  or  jury  in  such  a  case,  and  binding  upon  no  other 
court  of  jury  and  not  according  to  any  general  law  or  uniform 
rule.  One  of  the  reasons  underlying  this  uncertainty  is  the  fact 
that  "obscenity"  is  not  a  quality  inherent  in  a  book  or  picture, 
but  wholly  and  exclusively  a  contribution  of  the  contemplating 
mind,  and  hence  cannot  be  defined  in  terms  of  the  qualities  of 
a  book  or  picture,  but  is  read  into  them. 

"WHAT  IS  CRIMINALLY  'OBSCENE'"  Proceedings 
XV.  International  Medical  Congress.  Lisbon,  Portugal,  April. 
1906;  A/bany  Law /oumai,  (or  July,  igo6. 

"LEGAL  OBSCENITY  AND  SEXUAL  PSYCHOL- 
OGY," in  TAe  Medico- Legal  Journal,  for  Sept.,  1907,  and  The 
Alienist  and  Neurologist,  for  Aug.,  1908. 

•VARIETIES  OF  OFFICIAL  MODESTY,"  in  rh^  Amer- 
ican  Journal 0/ Eugenics,  for  Dec,  1907.-   a/^»u^Ji^Jn^'^^2t^-/f4l 

"FREEDOM  OF  THE  PRESS  AND  'OBSCENE'  LIT- 
ERATURE," N.  Y.,  1906.  (Published  by  The  Free  Speech 
League  ) 

Also  other  articles  now  being  prepared.  ,        ^  ^         -^  A.-  ,m^ 


{a)    The  first  result  of  this  uncertainty  is  that  the  statute  of 
Congress  herein  involved  creates  no  certain  or  general  rule  of 
conduct  for  the  guidance  of  citizens,  and  does  not  enable  them 
to  know  if  their  proposed  act  is  in  violation  of  law,  and  therefore 
every  indictment  and  conviction  under  said  statute  is  without 
due  process  of  law.     Unless  the  statute  so  defines  the  crime  that 
by  the  application  of  its  letter  alone   every  person  of  ordinary 
intelligence    must   always  draw  the   same   line  of  demarkation 
between  the   books  or  pictures  which  are  prohibited  and  those 
which  are  not,  then  the  statute  is  void  for  uncertainty  under  the 
the  old  maxim,  "Where  the  law  is  uncertain  there  is  no  law," 
and  consequendy  there  is  no  "due  process  of  law." 

{b)  Furthermore:  ' The  doctrine  is  fundamental  in  English 
and  American  law,  that  there  can  be  no  constructive  offenses." 
These  are  of  two  kinds.  First,  where  the  act  to  be  punished  is 
by  judicial  construction  brought  within  a  statute  whose  plain 
and  literal  meaning  does  not  cover  it.     Because  of  the  indefinite- 


ness  of  the  "obscenity"  laws  nothing  is  ever  unavoidably  certain 
within  the  letter  of  the  statute.  It  is  necessary  in  order  to  secure 
conviaion  that  judicial  constructign,  or  more  accurately  speak- 
ing judicial  legislation,  be  enacted  which  creates  the  criteria 
of  guilt  not  furnished  by  the  statute,  from  which  it  follows  that 
all  guilt  hereunder  is  but  constructive  guilt,  and  the  crime  only  a 
constructive,  that  is  a  judicially  created  crime,  and  not  due  pro- 

cess  of  law.  ,  u-  u  a^ 

The  second  class  of  constructive  crimes  are  those  which  do 
come  within   the   actual   and   literal   definition  of  the   criminal 
statute  but  where  that  predicates  crime  upon  conduct  which  is 
only  a  constructive,  and  not  a  real  and  actually  achieved  material 
injury,  to  any  living  being,  n.,r  conditioned  upon  any  immment 
danger  thereof,  whose  existence  is  determinable  by  any  known 
law  of  the  physical  universe.     In  such  a  case,  the  reality  and 
materiality  of  the  injury  which  is  an  indispensible  foundation  of 
all  criminal  statutes  is  entirely  absent,  except  as  a  matter  of  legal 
fiction,  and  not  as  a  matter  of  the  letter  of  the  law.    The  same 
proposition  may  be  thus  stated:    One  is  being  punished  for  a 
constructive  crime  whenever  the  alleged  crime  consists  only  in 
the   dissemination   of  ideas,    if  under   the   statute  the   penalty 
attaches  upon  conditions  other  than  that  the  ideas  have  actually 
resulted   in   material    injury  to  some  one.     Every  psychologic 
crime   so  long  as  it  remains  a  mere .  psychological  offense  whose 
iniury  is  constructive  only,  can  never  become  anything  except  a 
constructive  crime.    Such  purely  constructive  wrong  and  con- 
structive crime  cannot  be  penalized  in  any  country  whose  consti- 
tution was  ordained  to  promote  liberty,  and  therefore  such  a 
statute  cannot  constitute  "due  process  of  law." 

"THE  SCIENTIFIC  ASPECT  OF  'DUE  PROCESS  OF 
LAW  "  in  The  American  Law  Review,  for  June,  1908. 

"STATUTORY     UNCERTAINTY     AND     DUE     PRO- 
CESS OF  LAW,'  "in   The  Central  Law  Journal,  for  Jan,  3, 

1908. 
-  THE  HISTORICAL  INTERPRETATION  OF  '  LAW,'  " 

in  The  Albany  Law  Journal,  for  April,  1908. 

-DUE  PROCESS  OF  LAW/  IN  RELATION  TO 
STATUTORY  UNCERTAINTY  AND  CONSTRUCTIVE 
OFFENCES,"  N.  Y.,  1908,  published  by  THE  FREE  SPEECH 
LEAGUE,  120  Lexington  Avenue,  N.  Y.  City. 

-CONSTRUCTIVE    OFFENCES    DEFINED,"    in    The 
Central  Law  fcnimal,  Auffd^  1908. 


4.     The  statute  in  practical  operation  violates  the  constitu- 
tional guarantee  against  ex  post  facto  laws. 

Syllabus  of  the  argument:  The  second  result  of  this  uncer- 
tainty of  the  statute  is  that  every  indictment  and  conviction 
under  said  statute  is  always  according  to  an  ex  post  facto  law  or 
standard  of  judgment,  specially  created  by  the  court  or  jury  for 
each  particular  case.  The  Congress  of  the  United  States  has  no 
power  to  authorize  a  jury  to  determine  guilt  of  crime  according 
to  varying  personal  standards,  such  as  must  control  the  opinion 
of  a  jury  on  the  psychological  tendency  of  a  book  upon  an  unde- 
scribed  hypothetical  reader,  and  which  standard,  because  it  is 
personal  to  the  juror,  in  the  nature  of  things  cannot  be  known  at 
the  time  the  alleged  act  was  committed,  nor  before  the  rendition 
of  a  verdict  thereon. 

A  conviction  and  punishment  under  such  circumstances  is 
always  by  virtue  of  ex  post  facto  legislation  on  the  part  of  the 
court  or  jury,  and  is  none  the  less  unconstitutional  because  the 
attempted  delegation  of  power  to  enact  it  was  made  before  the 
conduct  to  be  punished.  All  the  criteria  of  guilt  must  be  found 
in  a  prior  statute. 

♦•THE  SCIENTIFIC  ASPECT  OF  DUE  PROCESS  OF 
LAW,'  "  in  The  American  Law  Review,  for  June,  1908 

•♦STATUTORY  UNCERTAINTY  AND  'DUE  PRO- 
CESS OF  LAW,'  "  in  r^r  Central  Law  Jour7ial,  for  Jan.  3, 
1908. 

•THE  HISTORICAL  INTERPRETATION  OF  'LAW,'  " 
in  The  Albany  Law  Journal,  for  April,  1908 

"  'DUE  PROCESS  OF  LAW'  IN  RELATION  TO  STAT- 
UTORY  UNCERTAINTY  AND  CONSTRUCTIVE  OF- 
FENCES,"  N.  Y.,  1908,  published  by  THE  FREE  SPEECH 
LEAGUE,  120  Lexington  Avenue,  N.  Y.  City. 

Also  other  articles  now  being  prepared. 


I 


5.  The  statute  in  its  practical  operation  violates  the  seventh 
amendment  to  the  constitution  in  this:  By  reason  of  the  want  of 
definition  of  the  crime,  by  a  statutory  statement  of  the  criteria  of 
guilt,  the  courts  submit  to  the  jury  a  determination  of  the  question 
of  law  as  to  what  shall  constij^te  ^'obscenity."     Congress  has 


no  power  to  make  juries  the  judges  of  the  law.  especially  not  in 
cases  wherein  they  were  not  authorized  to  be  such  judges  under 
the  common  law  of  England.  No  such  acts  as  are  now  punished 
under  "obscene"  literature  were  ever  included  under  the  com- 
mon  law  crime  of  "obscene  libel.'* 

-OBSCENE  LITERATURE  UNDER  THE  COMMON- 
LAW,"  Albany  Law  Journal,  May,  1907. 

All  of  the  foregoing  propositions  are  to  be  fully  defended  in 
a  book  entitled  "Obscene  Literature  and  Constitutional  Law," 
copyrighted  February,  1908,  and  now  in  preparation.  If  these 
problems  shall  be  submitted  to  any  court  for  adjudication  it 
is  hoped  that  an  opportunity  will  be  given  me  to  furnish  a 
completed  argument,  because  I  should  dislike  very  much  to 
have  an  adverse  precedent  established  upon  a  presentation  less 
perfect  than  the  best  I  am  able  to  make.  Upon  request  from 
any  judge  I  will  forward  all  those  portions  of  the  argument  which 
at  that  time  I  may  have  ready. 

THEODORE  SCHROEDER, 

63  East  59th  Street, 

New  York  City. 


FREEDOM  OF  SPEECH  AND  PRESS  has  been  defended 
by  Theodore  Schroeder,  attorney  for  the  Fi  ee  Speech  League, 
in  the  following  magazine  articles: 

Albany  Law  Journal,  (Albany,  N.  Y. ) 

July,  1906.     WHAT  IS  CRIMINALLY  "OBSCENE?" 

"OBSCENE"    LITERATURE   AT    COM- 
MON LAW. 
THE  CONSTITUTION  AND  OBSCENITY 

POSTAL  REGULATIONS. 
THE  HISTORICAL  INTERPRETATION 
OF  "LAW." 


May,  1907. 
Nov.,  1907. 
April,  1908. 


10 


Alienist  and  Neurologist,  (St.  Louis,  Mo.) 

Aug.,  1908.     LEGAL    "OBSCENITY"    AND   SEXUAL 

PSYCHOLOGY. 

Altruria,  (New  York  City.) 

Mar.,  1907.     THE  EVOLUTION  OF  COMSTOCKERY. 

American  Journal  oj  Eugenics,  (formerly  Chicago). 

July,  1907.     OPPOSITION   TO    FREEDOM    OF   THE 

PRESS. 
Sept.,  1907.     WHY   DO    PEOPLE   OBJECT   TO   SEX- 
DISCUSSION? 
Dec,  1907.     VARIETIES  OF  OFFICIAL  MODESTY. 

American  Law  Review,  (Boston  and  St.  Louis.) 

June,  1908.     THE    SCIENTIFIC   ASPECT    OF    "DUE 

PROCESS     OF     LAW"     AND     CON. 
STRUCTIVE  OFFENSES. 

Arena,  The,  (Trenton,  N.  J.) 

Dec,  1906.     OUR   VANISHING    LIBERTY  OF   THE 

PRESS. 
June,  1908.     LAWLESS     SUPPRESSION     OF     FREE 

SPEECH   IN   NEW   YORK. 
July,  1908.     THE   GROWING  DESPOTISM   OF  OUR 

JUDICIARY. 

II 


Blue  Grass  Blade,  (Lexington,  Ky.) 

Nov     1906.     WHAT  IS  CRIMINALLY  "OBSCENE"? 
Mar.  17,  1907.     THE    FREE    SPEECH    LEAGUE    TO 

THE   RESCUE. 

.  •'" 
Central  Law  JournaL  (St.  Louis,  Mo.) 

Sept.  6,  1907.     ON  THE  IMPLIED    POWER  TO   EX- 
CLUDE   ''OBSCENE"  IDEAS  FROM 
THE  MAILS. 
Jan.  3.  1908.     CONCERNING    UNCERTAINTY     AND 

"DUE  PROCESS  OF  LAW." 
Aug.,  (?)  1908.     CONSTRUCTIVE      OFFENCES      DE- 
FINED. 

Critic  and  Guide,  (New  York  City.) 

Oct.,  1906.     PSYCHIC  LASCIVIOUSNESS  AND  ''PU- 
RITY"  LEGISLATION. 

Government,  (Boston.) 

Aug   (?)  1908.     THE    JUDICIAL  DESTRUCTION   OF 

FREEDOM  OF  THE  PRESS. 

Liberal  Review,  (Formerly  Chicago.) 

Aug.  and  Sept..  1906.     A  MUCH    NEEDED    DEFENSE 

FOR     LIBERTY     OF    CONSCIENCE, 
SPEECH    AND    PRESS,    WITH    SPE- 
CIAL   REFERENCE    TO    SEX    DIS- 
CUSSION. 

Light,   The,  (La  Crosse,  Wise.) 

Jan..  1907.  MORE  LIBERTY  OF  THE  PRESS  ESSEN- 
TIAL TO  PURITY  PROPAGANDA. 
An  address  before  the  National  Purity 
Federation. 

Medico  Legal  Journal,  (New  York  City.) 

Sept..    1907.     LEGAL     OBSCENITY     AND     SEXUAL 

PSYCHOLOGY. 

Mother  Earth  (New  York  City.) 

Dec.  1906     OUR   VANISHING    LIBERTY   OF    THE 

PRESS 
ON    SUPPRESSING    THE    ADVOCACY 

OF  CRIME. 
AN  UNANSWERED  LETTER. 
OUR  PROGRESSING  DESPOTISM. 

Pacifiic  Medical  Journal,  (San  Francisco.) 

Nov.  1907.     ON  MORAL  SENTIMENTALIZING. 

12 


Jan'y,  1907. 

June,  1907. 
April,  1908. 


Physical  Culture  Magazine,  (New  York  City.) 

April,  1907.     IN  DEFENSE  OF  LIBERTY. 

May,  1907.     CONSTRUCTIVE      "OBSCENITY"     AN 

UNCONSTITUTIONAL  CRIME. 
June,  1907.     OBSCENITY  AND  WITCHCRAFT,  TWIN 

SUPERSTITIONS 
Sep.,  1907.     WHY  THE  OBSCENITY  LAWS  SHOULD 

BE  ANNULLED. 

Proceedings,       X  V,  Co7igres  International  de  Medicine,  (Lisbon, 

Portugal. ) 
April,  1906.     WHAT  IS  CRIMINALLY  "OBSCENE?" 

Public,  The,  (Chicago.) 

May  15,  1908.     LEGAL  LIMITATATION  UPON  THE 

USE  OF  LANGUAGE. 

Secular  Thought,  (Toronto,  Can.) 

Feb'y,  1907.     OUR  VANISHING    LIBERTY  OF  THE 

PRESS. 

Aug..  1907.     OPPOSITION   TO   FREEDOM   OF   THE 

PRESS. 

Sept..  1907.  CONCERNING  OBSCENE  LITERA- 
TURE. 

To  Morrow,  (Chicago). 

May,  1907.     A  TEST  CASE  ON  OBSCENITY. 

Truth  Seeker,  (New  York  City). 

Mar.,    1908.     A    LETTER     ON    THE    VANNI    CASE. 

(Unimportant.) 

Many  more  articles  are  in  preparation. 

Some  pamphlets  have  been  issued  containing  collected  essays 
selected  from  the  foregoing  list,  and  somewhat  revised  and  en- 
larged, and  for  sale  by  the  Free  Speech  League.     These  are: 

FREEDOM  OF  THE  PRESS  AND  OBSCENE  LIT- 
ERATURE; and 

"DUE  PROCESS  OF  LAW"  IN  RELATION  TO 
STATUTORY  UNCERTAINTY  AND  CON- 
STRUCTIVE OFFENSES,  25c.  each. 

It  is  intended,  as  soon  as  the  work  can  be  completed,  to 
publish  a  collection  of  all  Mr.  Schroeder's  works  relating  to  the 


13 


II 


N 


suppression  of  sex -discussion   under   the   title  of  "OBSCENE 
LITERATURE  AND  CONSTITUTIONAL  LAW." 

THE  FREE  SPEECH   LEAGUE, 

120  Lexington  Avenue, 

New  York  City. 


June,  1908. 
June,  1908. 

July,  1908. 


Other   articles   in    relation   to    FREEDOM    OF   SPEECH 
AND  OF  THE  PRESS,  can  be  found  as  follows  : 

Arena,   The  (Trenton,  N.  J.) 

Oct.,  1906.      THE    ANGLO-SAXON     CRIME,    by    the 

Hon.  Thomas  Speed  Mosby. 
DENIAL  OF  FREE  SPEECH  IN  MASSA- 

CHUSETTS,  by  the  Rev.  Elliot  White. 
THE    SINISTER     ASSAULT    ON    THE 

BREAST  WORKS  OF  FREEDOM,  by 

B.  O.  Flower. 
FREE  SPEECH  AND  GOOD  ORDER,  by 

Louis  F.  Post. 

Fortnightly  Review,  (Great  Britain). 

March,  1884.      BLASPHEMY    AND     BLASPHEMOUS 

LIBEL,  by  Fitz  James  Stevens. 

Government,  (Boston.) 

Oct.,  1907.     THE    AMERICAN     POSTAL    CENSOR- 
SHIP, by  Louis  F.  Post. 

Harper's  Monthly,  (New  York  City.) 

Sep.,  1907.     DECISIVE    BATTLES    OF    THE    LAW. 

A  FIGHT  FOR   FREEDOM  OF  THE 
PRESS,  by  Frederick  Trevor  Hill. 

Public.  T^i?  (Chicago,  111.) 

This  live  weekly  journal  has  published  a  score  or  two  of 
brief  but  pointed  editorials  in  advocacy  of  Free  Speech,  and 
is  persistently  spreading  the  alarm  at  every  succeeding 
abridgment  of  freedom  of  speech  and  press. 

North  American  Review,  (New  York  City.) 

A  BLOW  AT  FREEDOM  OF  THE 
PRESS,  by  Hannis  Taylor. 

HOW  THE  UNITED  STATES  CUR- 
TAILS FREEDOM  OF  THOUGHT,  by 

Ernest  Crosby. 


Dec,  1892. 
April,  1904. 


Open  Court,  (Chicago.) 

Oct.,  1900.     ON    CURBING    THE    SPIRIT    OF    IN- 
QUIRY, by  Carus  Sterne. 
Nov.  1900.     THE   UNSHACKLING  OF  THE   SPIRIT 

OF  INQUIRY,  by  Dr.  Ernest  Krause. 
Physical  Culture,  (New  York  City.) 

Oct.,  1907.     FREEDOM  IN  LITERATURE,  by  Robert 

Buchanan. 
During  1907  and  1908  this  periodical  had  numerous  articles 
of  less  permanent  value,  but  designed  to  secure  larger  liberty 
of  the  press. 

Secular  Thought,  (Toronto,  Can.) 

June,  1908,  et  seg.     SHALL   SPEECH    BE    FREE?    by 
George  Allen  White. 

Truth  Seeker  (New  York). 

A  quarter  of  a  century  ago  this  paper  pioneered  the  opposi- 
tion against  the  abridgment  of  sex-discussion.  It  still 
publishes  many  articles  of  minor  importance. 


15 


J.^^ 


.) 


THE     FREE     SPEECH     LEAGUE, 

120   Lexington    Avenue,   New  York. 

Offers  the  Followhig  List  of  Publications,  some  of  which  can 
be  had  in  large  lots  at  reduced  rates  for  free  distribution. 

The  Declaration  of  the  Free  Speech  League.       .         .  free 

Constructive  Obscenity,  etc.,  re  Harmon  case  of  1905,  free 

Liberty  in  Literature,  by  R.  G.  Ingersoll,          .         .  $0.25 

Do  Vou  Want  Free  Speech  ?  by  James  F.  Morton,  Jr.  .10 

Liberty  versus  Assassination,  by  E.  C.  Walker,  .  ,  .05 
Who    is   the   Enemy,  Comstock    or  You  !   by   E.   C. 

Walker. 20 

Administrative  Process  of  the  Postal  Department,  by 

Prof  T.  B.  Wakeman,  05 

Our  Advancing  Censorship,  by  Louis  F.  Post,           .  .05 

Our  Despotic  Censorship,  by  Louis  F.  Post,        .         .  .05 

An  Essay  on  Liberty,  by  John  Stuart  Mill  (cloth),  .  .50 
Martyrdoms   of  Literature,  by  R.  H.  Vickers,  (24  and 

451  pages) 2.00 

John  Turner  Case  before  Supreme  Court,  argument  by 

his  attorney,  Clarence  S.  Darrow  (concerning 
deportation  of  anarchists)       .         ,         .         .         .         .50 

Why  Heywood  Should  be  Released,  by  E.  W.  Cham- 
berlain, ...  05 

A   Good   Man  Sent   to   Prison  (Harman),  by  H.   O. 

Pentecost, 05 

In   Behalf  of  Personal  Liberty,  by  Julian  Hawthorne,         .05 

An  Appeal  for  Liberty  and  Justice  (to  women)  by  C. 

L.  James, 05 

Primary  Causes  of  Disease,  Insanity  and  Death,  by  E. 

B.  Foote,  Sn,  M.  D 05 

Pamphlets  or  Books  Written  or  Compiled 
by  Theodore  Schroeden 

Our  Vanishing  Liberty  of  the  Press,  from  the  Arena,  .05 

Culture  and  Culturine, 05 

Paternal  Legislation,  a  study  of  liberty,     .         .         .  .05 
Freedom  of  the  Press  and  Obscene  Literature,  a  col- 
lection of  three  essays,  including  "What  is  Crimi- 
nally Obscene  ?' '  etc ,         .         .25 

Free  Press  Anthology  of  classical  arguments  and  ex- 
tracts culled  and  compiled  from  wise  men  ol 
all  ages,        ....  ...       i.oo 


/' 


// 


IV 


r^ 


in 

^ 

UJ 

<t> 

ql 

>0 

D 

o> 

K 

r<% 

< 

en 

CL 

o 

u 

\ 


£!^J!!!BIA  UNfVERSfTY 


( 


/V^.g" 


■■;  '.v^'fV 


»  "ir   .>    • 


•4   v-jf^'"'*'*'^'''   ■  '  ' 


■^<s. 


I 


00 

>o 


< 
o 


^  fsj  l-l 


\ 


M. 


%' 


^(ii  um0¥'^f^^^ 


,>f-^^ 


'*»V-!fc 


^mm" 


■'./Mi.-'  i,^- 


r  f   _"-  5.,.»«I- 

;*,!.' 
**'i"' 

..^♦u-;;'-  ■■.,  . 

r-t^:^'*.: 


i.T 


v--  - 


^■n 


If-f  > 


^'Cfi 


.X' 


.%t^ 


-.._  --Itl 


«.  m 


-f^C' 


t 


Br^iiZTS, 


.^il^^^M^:^: 


u3S5»'E 


|£0i|:^;^' 


,>, 


**.  »^  %-' 


T": 


-*1 


%' 


*'^* 


^M-i'^'f'y^ 


WPM 


r*^  .'• 


&Vfa** 


■^\ 


,'^K- 


€'|5 


.J^^' 


^fPi^- 


-  .<i5.»»  *.» 
*'■•  ■•*#  •»;■"  •'*- 


*.   %-^: 


►I" 


-  -f^tj-^f 


1^-    -     (:>^-,?^ 


<% 


"#.- 


'SiS 


^i 


■M'^-:,, 


"W- 


:w 


A>  "'■ 


/M 


ri* 


'^.^l 


if^^T'^ 


■  *^.., 


■'•^j- 


